Circa1865

Though one of the brightest stars in the line-up for US president, Vivek Ramaswamy greatly errs in his uninformed explanation of Chief Justice Roger B. Taney’s (pronounced “Taw-nee”) majority opinion in the Dred Scott Case of 1857. Ramaswamy recently opined that Justice Taney’s majority opinion denying free status to Scott was for the purpose of “keeping guns out of the hands of black people.” He offers no documentation to support this belief.

First, Justice Taney was born in Maryland in 1777 and had a far better understanding of the Founders’ minds and logic than Mr. Ramaswamy does today. Further, prior to his seat on the Court, Taney served as US Attorney General and Secretary of the Treasury under President Andrew Jackson.

In the Dred Scott decision before them, Justice Taney and his Court were primarily concerned with Dred Scott’s free or slave status, and if somehow he had obtained citizenship in some State under the Articles of Confederation or the later Constitution. Prior to the postwar 14^th Amendment, the US Constitution did not include the word “citizen” and each State set its own standard for citizenship.  As Dred Scott was born an African slave, was not freed from this status and was not a “citizen” of a State who could sue in federal court.

The question of access to weapons had no bearing on the case as Mr. Ramaswamy suggests.

The Court ruled, with two Justices dissenting, that black people descended from American slave ancestors were not such persons as the word “citizen” means when the Constitution gives federal courts jurisdiction over suits between citizens of different States.”

(The Legal & Historical Status of the Dred Scott Decision. Elbert William R. Ewing, Cobden Publishing, 1909, pp. 54-55)

The US Constitution clearly states that only Congress may declare war against a foreign enemy, and Article III, Section 3 of the same document clearly defines the definition of treason committed against the United States.

‘Such Was the Spirit of Those Who Made the War’

“And so, without any authorization from Congress, Lincoln began a war on the Southern States which had formed themselves into a more perfect union. A few months after he began the war, he had the United States Congress to meet and the first thing offered was a resolution confirming and legalizing his acts, as if they had been authorized.

This particular resolution was before the Senate fifteen times between July 6 and August 6 and never passed. Then, after twenty months of warfare, the Supreme Court of the United States (67 US Reports, pg. 668) said Congress had no power delegated to it to make war upon a State, and that the President held no authority to make war – only Congress could do so.

That ‘the Civil War between the Northern and Southern States arose because the citizens of the States owed a supreme allegiance to the United States which the Southern States sought to absolve themselves from, by State secession, and the right of a State to do what was now being decided by wager of battle.’

There was no reason or ground stated to justify the above claim that “the citizens of each State owed supreme allegiance to the United States.” It was a war by the Northern States to hold the Southern States in union with them; a conquest of free, sovereign and independent States to be held under the domination of the more numerous States.

As Senator Baker, of Oregon, declared in the Senate that he favored ‘reducing the population of the Southern States to abject to the sway of the federal government.’ ‘We may reduce the Southern States to the condition of territories and send to them from Massachusetts or from Illinois, loyal governors to control them. I would do that.’ (Cong. Globe LW, pg. 48). Such was the spirit of those who made the war.”

(A Southern View of the Invasion of the Southern States and War of 1861-1865. Capt. S. A. Ashe, Raleigh, North Carolina. Pg. 53)

The passage below records Lincoln’s narrow, sectional view of the reason war came in 1861. The war came not because the black man was in America, but due to Lincoln raising an unconstitutional army with troops from equally guilty Republican governors and invading Virginia. Three months lapsed before Congress met to review what the new president had done without authority, with the latter approving his actions under threat of arrest and confinement by Lincoln’s private military.

Lincoln’s colonization scheme for black “contrabands” who were not wanted in the north, revealed his true feeling toward the black race. This naïve plan ran into difficulty as speculators overextended themselves and as the existing countries of the region threatened war against what they saw as a clever scheme of Yankee imperialism. This scheme of colonization is well-covered in the recent book “Key West’s Civil War: Rather Unsafe for a Southern Man to Live Here” (Thuersam) from Shotwell Publishing.

Lincoln’s Caribbean Colonization Plan

“In August 1862, a committee of free blacks headed by Edward M. Thomas, president of the Anglo-African Institution for the Encouragement of Industry and Art, was invited to the White House. Introduced to Lincoln by the Reverend James Mitchell, the federal Commissioner of Emigration, the committee was there to hear the president’s arguments for black colonization.

Waiving the question of right or wrong, and implying that blacks were as much at fault as whites, Lincoln pointed to the long-standing and apparently permanent antipathy between the races.  Each race, in his opinion, suffered from the presence of the other. Not only were the vast majority of blacks held as slaves, but even free blacks were not treated as equals by white men, not could they ever expect to be. “The aspiration of men is to enjoy equality with the best when free, but on this broad continent, not a single man of your race is made the equal of a single man of ours.”

Overlooking the inability of his own race to confront the reciprocal problems of slavery and equality, Lincoln then blamed the blacks for the fact that whites were “cutting one another’s throats” in a civil war. “But for your race among us there could not be war, although many men engaged on either side do not care for you one way or another.”

Physical removal seemed the best solution. Urging blacks to emulate George Washington’s sacrifices during the Revolution and asking for colonization leaders “capable of thinking as white men,” Lincoln painted a glowing picture of the attractions of founding a colony in Central America. The region Lincoln had in mind, a site on the Isthmus of Chiriqui in the Caribbean, was far closer to the United States than the original black colony of Liberia in Africa.

The site was thought to contain rich coal deposits to provide jobs for black settlers and profits for the Northern speculators who had an interest in these mines. In what he hoped would clinch his case, Lincoln told his black audience that there would be no color prejudice in racially-mixed Central America and that the climate would be beneficial to what Northerners assumed was the peculiar adaptability of blacks to the tropics.”

(Flawed Victory – A New Perspective on the Civil War. William L. Barney. University Press of America, 1980, pp. 60-62)

Recollection of Great Actions in Bronze and Marble

“We are told by historians of an earlier age that whenever the renowned men of the Roman commonwealth looked upon the statues of their ancestry, they felt their minds vehemently excited to virtue. It could not have been the bronze or marble that possessed this power, but the recollection of great actions which kindled a generous flame in their souls, not to be quelled until they also, by virtue and heroic deeds, had acquired equal fame and glory.

When a call to arms resounds throughout the land and people relinquish the pleasant scenes of tranquil life and rally to their country’s call, such action is the result of an honest conviction that the act is commendable. In recalling such an epoch, the wish that a true record of the deeds done should be transmitted to posterity must dominate every patriot heart.

Loyalty to brave men who for four long years of desolating war – years of undimmed glory – stood by each other and fought to the bitter end with indomitable heroism which characterized the American soldier in grey, demands from posterity a preservation of the memories of the great struggle.

We cannot find in the annals of history a grander record or prouder roll of honor, no more just fame for bravery, patient endurance of hardships, and sacrifices. But what caused the four long years of desolating war?

Opposition to the to the right of equality within the political union of our fathers has been fostered and inflamed until it had taken possession of the public mind at the North to such an extent that it overwhelmed every other influence. The Republican party, soon to take possession of the powers of the national government, was sectional, irresponsible to the Southern States, and driven by an infuriated, fanatical madness that defied all opposition which must inevitably destroy every of vestige of our political rights.

The consideration for which our State’s gave assent to become members of the federal union of 1789 had wholly failed when they were not to enjoy equal rights within it. The compact was therefore willfully and materially broken.”

(Military History of Florida, Col. J.J. Dickison; Confederate Military History, Vol. XI.   Confederate Publishing Co., 1899, pp. 3; 8)

Nathaniel Macon, Model Conservative

From the Congressional Globe, February 14, 1826:

“The government which John Quincy Adams found when he moved into the White House in 1825 was a much bigger government than his father had left; and Nathaniel Macon, who had represented North Carolina in Congress since 1791, was far from happy with it.

He regretted that everything had grown, just like the number of doorkeepers of the houses of Congress. “Formerly two men were sufficient for doorkeeper, etc., for the two houses,” Macon complained, “but now there is a regiment.”

As he recalled at the time, during the presidency of John Adams, when the Kentucky and Virginia Resolutions had been passed, he asked: “If there was reason to be alarmed at the growing power of the General Government [then], how much more has taken place since? Congress now stopped almost at nothing, which it deemed expedient to be done, and the Constitution was construed to give power for any grand scheme.”

To Macon, it was a dangerous development. “Do a little now, and a little then, and by and by, they would render this government as powerful and unlimited as the British Government was,” Macon told his colleagues in the Senate in 1825.

At the next session, Macon declared that “he did not like to go on in this way – the Government constantly gaining power by little bits. A wagon road was made under treaty with an Indian tribe some twenty years ago – and now it has become a great national object to be kept up by large appropriations. We thus go on by degrees, step by step, until we get almost unlimited government power.”

(Nathaniel Macon and the Southern Protest Against National Consolidation. Noble E. Cunningham, Jr.  North Carolina Historical Review, Volume XXXI, No. 3, July 1955, pg. 376)

(The following is drawn from David Hackett Fischer’s excellent “British Folkways in America.”)

The American Revolution was not a singular struggle but a series of four separate Wars of Independence waged in very different ways by the major cultures of British America.

The first (1775-1776) was a massive popular insurrection in New England. An army of British regulars was defeated by a Yankee militia much like the Puritan bands from which they were descended and urged on by their Calvinist clergy. This war, as stated by John and Samuel Adams was not fought to secure any rights of man in any universal sense, but against what was called “the contagion of venality and dissipation” which was spreading from London to America. New Englanders felt that they had always managed their own affairs and when England tried to stop them – especially their smuggling of goods and slave trade without the Crown’s percentage paid – the war came.

The second war for independence (1776-1781) was more protracted and fought mainly in the middle colonies and coastal south. It was a gentleman’s war of British regulars and professional mercenaries commanded by English gentry, against an increasingly professional American army led by a member of the Virginia gentry. They were fighting for what Jefferson called “the ancient liberties of his Saxon ancestors.”

The third war of independence reached its climax in the years 1779-1781. It was a rising of British borderers in the southern backcountry against American Loyalists and British regulars who invaded the region. The result was a savage struggle which resembled many earlier conflicts in North Britain with much family feuding and terrible atrocities committed on both sides. Prisoners were slaughtered, homes were burned, women were raped, and even small children were put to the sword.

The fourth war of independence continued in the years from 1781 to 1783, a non-violent economic and diplomatic struggle, in which the elites of the Delaware Valley played a leading part. The economic war against England was led by Robert Morris of Philadelphia; the genius of American diplomacy was Benjamin Franklin.

The end of the war resulted in the creation of three “regional republics” of British America – voting blocs of “eastern” colonies of New Englanders; a Southern bloc centered in tidewater Virginia; and a midland bloc of mainly Delaware Valley delegations. The Constitution of 1787 was an attempt to write the rules of engagement among these three regional republics – an agreement which began dissolving in Andrew Jackson’s first term. The nullification issue of 1832 tested the strength of a State’s true sovereignty.

By 1850 the Southern bloc had enough and began reconsidering the value of its political alliance with the others. In 1854 the new Republican party arose from the ashes of the Whig party and absorbed anti-Catholic Know Nothings, Transcendentalists and radical abolitionists. In 1860, this strictly sectional party fielded its second presidential candidate and won a plurality victory in November 1860. Within a month this party would drive South Carolina to independence; other States would soon follow.

In an act of desperation and fearful of his party losing its recently-gained power, this first Republican president violated Article III, Section 3 of the Constitution he was sworn to defend – “Treason against the United States shall consist only of levying War against them; or in adhering to their Enemies, giving them Aid and Comfort.” “Them” is the States, individually or collectively.

(Primary Source: Albion’s Seed: Four British Folkways in America. David Hackett Fischer, Oxford University Press, 1989, pp. 827-828)

In his foreword to “Chaining Down Leviathan” by Marco Bassani, Dr. Donald Livingston writes of America’s new central government differing from the European model by having no plenary power. He adds that “It had only a few well-defined powers delegated to it by a compact between sovereign States,” which all held the right to check unauthorized acts of central power – and even withdraw if they chose to do so. As to new States being created in the future, Thomas Jefferson believed that States “would negotiate secessions and form new Unions of States”. He imagined perhaps three new countries united by trade and defense treaties: a federation along the Atlantic coast, one along the Atlantic coast, the Mississippi, and the Pacific. The States themselves held supreme political authority; the government at Washington was merely the agent created by the States.

Source of Political Power Flows from States

“The linchpin of John C. Calhoun’s analysis of the United States Constitution was the power of the individual State as a contracting party to, and the real dominus of, the federal pact.

It must be noted that the word “State” is all over the Constitution (it appears 103 times), while the term “nation” does not appear at all. Federal political representation, and not just that of the Senate, is centered on the States; the members of the House of Representatives are elected “by the People of the several States.”

Regarding eligibility for election, the State-centered character of representation is even more marked: for the House the candidate must be an inhabitant of the State “in which” he or she will be chosen; for the Senate the candidate must be an inhabitant of the State for which he or she will be chosen. In sum, for the House a person is chosen as a representative of a State; he or she is never imagined as a delegate of a part of the American people (which simply does not exist from a constitutional point of view), while the senator is in Washington on behalf of their State.

The source of political power flows from the States to the federal government, and never vice-versa. The Constitution authorizes and prohibits certain actions by the federal government, but to the States nothing is ever permitted, only prohibited. This means that while State political authorities must check only if a constitutional prohibition exists, in the absence of which they can act freely.

A general political capacity is recognized only for the States. The Tenth Amendment (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) is the architrave of American polity. It sums up the entire system of permissions and prohibitions in the sense delineated by Calhoun.”

(Chaining Down Leviathan: The American Dream of Self Government 1776-1865. Luigi Marco Bassani, Abbeville Institute Press, 2021, pp. 195-196)

What Congress Is Doing to Curb the Supreme Court

“Bills to counter recent Supreme Court rulings are starting to make their way through Congress. How much further will Congress go? Everything about the Court – how it operates, terms of judges, scope of rulings – is about to get a thorough review, the first in decades.

US News & World Report – July 12, 1957 – Congress is starting to strike back at the Supreme Court. A score of bills have been introduced to curb the Court’s power and to sidestep the effects of controversial decisions. It is clear that a growing number of Congressmen are convinced that new laws must be passed to overcome the effects of these decisions. Other Congressmen propose to go much further and trim the powers of the Court itself.

Senator Herman Talmadge (Dem.) of Georgia, for example, proposes to amend the code of laws to remove public schools from the jurisdiction of federal courts. Others have offered amendments to the Constitution giving States the exclusive power to regulate schools and all other matters relating to health and morals.

Limits on Tenure? Court decisions during the recent term have produced a rash of bills to make Supreme Court Justices less safe in their lifetime jobs. Senator Russell Long (Dem.) of Louisiana, offered a constitutional amendment to require reconfirmation of a justice by the Senate after 12 years on the bench.  Senators Olin D. Johnston (Dem.) of South Carolina, and James O. Eastland (Dem.) of Mississippi propose amendments to require reconfirmation every 4 years.

Behind all the proposals affecting the appointment of Justices is the objection in Congress that recent decisions have been more political than judicial in purpose and in effect.

To promote full debate, Senator Talmadge also is sponsoring a bill to require the Court to give a full hearing, with oral argument, on any case it decides. His contention is that the Court acted in at least ten cases during the recent term without hearing arguments.

All of these bills, in effect, are telling the Court that it is asserting too much power over Congress, the President and the States.”

Once the Constitution was ratified in 1789, a State’s declaration of independence from it was recognized and fully acceptable. New York, Rhode Island and Virginia specifically noted this reserved right in their ratifications of the US Constitution, just in case the Tenth Amendment was ignored.

What we refer to as our “civil war” is erroneously claimed to be caused by a desire to abolish slavery when it was not. The decision for independence by several Southern States in 1860-1861 – secession – was not a cause for war as it was an inherent right of a State to do so. Lincoln’s minority government had no constitutional remedy to stop any States from departing. The “cause” of war was Lincoln’s decision to instigate a violent incident at Fort Sumter and then unconstitutionally raise an army without the sanction of Congress to wage war upon a State. Though many governors refused Lincoln’s request for troops to subjugate Americans, those who did were also guilty of treason.

The US Constitution’s very definition of treason in Article III, Section 3 is the waging of war upon “Them” – the States – and adhering to their enemies. What Lincoln unleashed cost a million lives lost along with our Constitution, Americans in the South subjugated and disenfranchised, the North saddled with enormous debt, inflation and fiat money, and the US government embarking on a career of imperialist ventures.

It Wasn’t About Slavery Nor a “Civil War”

In his excellent “It Wasn’t About Slavery,” author Samuel W. Mitcham, Jr. notes that “The noted historian Shelby Foote was right: those who say that the Civil War was all about African slavery are just as wrong as those who declare that the war had nothing to do with African slavery.  The fake historians and purveyors of the myth of the North’s noble and enlightened cause to end slavery willfully ignores other cause, including huge constitutional issues such as a State right to withdraw, nullification, and judicial overreach – which led Thomas Jefferson to refer to the federal judiciary as “a despotic branch.”

The issue of secession can be dealt with very simply. The United States itself was the produce of secession and the Declaration of Independence was the most beautiful ordinance of secession ever written.”

A “civil war” is a struggle of competing factions within a nation or country for control of its government. The Southern States pursued political independence from the United States in 1861 just as the thirteen colonies pursued political independence from Britain in 1776.

Mitcham notes that the North’s war did indeed actively destroy the South’s agricultural labor system and armed these workers against the South, and importantly that “freeing the slave was a result of the war, not the casus belli.”

(It Wasn’t About Slavery, Samuel W. Mitcham, Jr. Regnery History Press, 2020. Pp. xvi-xvii)

What follows is an abridgment of an article written by a descendant of Chief Justice Taney to clarify the legal question presented and facts considered. Taney was 12 years old when Washington died and lived long enough to see the Constitution overthrown by military force. It is said that his arrest was ordered for defying Lincoln’s suspension of habeas corpus.

Chief Justice Taney and Dred Scott

Chief Justice Roger B. Taney (pronounced “tawney”), 1777-1864, is mostly known for his decision in the Dred Scott v. Sanford case in 1857. Largely forgotten is his 30 years on the bench of the Supreme Court, and his steadfast understanding that the Constitution is a compact among sovereign States. In his view, most matters of importance were the domain of States, not the federal government, and the Court was to interpret the Constitution according to the original constitutional meaning when it was first adopted.

The primary question the Court was to decide in the Dred Scott case was whether black people in the United States were “citizens” of the United States. It must be recalled that in the antebellum United States people were first citizens of the individual States, and by virtue of that, the United States.

Taney’s Court was to determine whether people of African descent were actual members of the American political community under the original intent and meaning of the Constitution. His study and understanding reflected that the United States in 1789 were primarily white, Anglo-Saxon people and black people were not part of what was an original political creation of Europeans. The racial viewpoint of the latter toward African people was primary in his consideration.

He and his Court saw that in all States, North and South, laws restricted relations between the white and black races because it was widely believed that “a perpetual and impassable barrier was intended to be erected between the white and black race.” Clearly, this is in general an accurate assessment of 17^th and 18^th century colonial law.

The Court also explored whether the Declaration of Independence proposition that “all men are created equal” altered the legal and social status of black people in America. Taney argued that if understood in its proper historical context where blacks and whites occupied different legal and social spheres, “it is too clear that black people were not intended to be included and formed no part of the people who framed and adopted this Declaration” in 1789.

It was clear then as it is now, that the Declaration of Independence stood only for the proposition that the American colonists, as Englishmen, had the same rights to self-determination and self-government as their British kinsmen. The Founders of course provided for future amendments to their work, but Taney and his Court were considering this legal question in 1857.

Taney’s Court also investigated whether the Constitution itself had changed the status of black people so as to make them part of the American political and legal community. Taney noted that as the Preamble declared that the United States was formed “by the people” – which was those who were members of the different political communities in the several States forming the United States. Taney concluded that as most States, North and South, had long distinguished between blacks and whites in terms of social and legal rights, and the Constitution itself implicitly distinguishing between the races in its Migration and Importation clause (permitting the abolition of the slave trade after 1808) and the Fugitive Slaves clause, black people were simply not intended as part of “the people” described in the Constitution.

As Taney reviewed federal statutes to further divine the Founders’ minds in 1789 and what they considered “the people of the United States,” he found two federal laws passed within a few years of ratification. One was the first naturalization law of 1790, which provided that only “free, white persons” could become citizens and therefore this was the political community. The other was the first militia law of 1792, which required the enrollment of every “free, able-bodied white male citizen.”

Though one could contest Chief Justice Taney’s interpretations at that time, eminent historian Carl Brent Swisher wrote in his well-respected biography of Taney that his decision was based upon an “accurate portrayal of relations between the two races in communities where both lived in considerable numbers” at the time it was written.

Thus, investigating this important question in 1857, Chief Justice Taney concluded that people of African descent were not citizens of the United States, and therefore the Dred Scott case did not fall under federal jurisdiction. To rule otherwise, Taney warned, “would require that the Court give to the words of the Constitution more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Such a “liberal construction” would exceed the Supreme Court’s authority.